| People v Delgado |
| 2014 NY Slip Op 02545 [116 AD3d 541] |
| April 15, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v David Delgado, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Nancy D. Killian of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered August1, 2012, convicting defendant, after a jury trial, of manslaughter in the first degree, andsentencing him to a term of 25 years, unanimously modified, as a matter of discretion inthe interest of justice, to the extent of reducing the sentence to 20 years, and otherwiseaffirmed.
The court properly declined to submit the lesser included offense of second-degreemanslaughter, or the defense of intoxication. Neither was supported by a reasonable viewof the evidence, viewed most favorably to defendant.
Defendant admitted he acquired a knife in preparation for possible confrontationwith the deceased, although defendant asserted he was in fear of being attacked.
There was no reasonable view of the evidence that defendant acted with anythingless than intent to cause serious injury (see e.g. People v Castro, 76 AD3d 421, 425 [1st Dept2010], lv denied 15 NY3d 892 [2010]; People v Cesario, 71 AD3d 587 [1st Dept 2010], lvdenied 15 NY3d 803 [2010], cert denied 562 US —, 131 S Ct670 [2010]). Furthermore, although defendant described his alcohol consumption indetail, his behavior was entirely purposeful, and there was no reasonable view of theevidence that he was so intoxicated as to be unable to form the requisite intent (see People v Beaty, 22 NY3d918, 921 [2013]; People vSirico, 17 NY3d 744, 745 [2011]). Even if defendant's testimony may havesupported a jury instruction on the defense of justification, which the court granted, thattestimony did not support instructions on [*2]intoxicationor second-degree manslaughter.
However, we find the sentence excessive to the extent indicated.Concur—Tom, J.P., Acosta, Freedman and Kapnick, JJ.